BART'S NON-DISCRIMINATION PROGRAM FOR SUBCONTRACTING ON NON-FEDERAL CONTRACTS

I. PURPOSE

The purpose of this program is to ensure that contractors who contract with BART do not discriminate or give a preference in the award of subcontracts on the basis of race, national origin, color, ethnicity (hereinafter "ethnicity"), or gender. This program applies only to BART's non-federally funded contracts.

II. FINDINGS

A.

BART awards contracts to private prime contractors for goods and services in three areas: construction, procurement and professional services.

B.

Some of the contracts in each of these areas are financed with funds received by BART from non-federal sources, e. g. , fare revenue.

C.

In many instances where the BART contract contains subcontracting opportunities, the bidder/prime contractor, in making its bid for a BART contract, subcontracts portions of the work to be performed under the contract. In these situations, BART, provides the funds, through the prime contract, to pay the subcontractors.

D.

Studies performed by the National Economic Research Associates ("NERA Study") show that prime contractors in the private sector, in BART's geographic market, subcontract with minority and women-owned subcontractors ("MBE" and "WBE") at a rate that is substantially below the availability of qualified MBEs and WBEs to perform the work being subcontracted. The NERA Study shows that this underutilization of MBE and WBE subcontractors exist in all three areas in which BART contracts.

E.

According to the NERA Study, the difference between the availability and the utilization of MBE and WBE subcontractors by prime contractors is generally statistically significant, i. e. , the level of underutilization is not attributable to chance, but instead indicates that a factor, other than chance, is responsible for the difference. The NERA Study further concludes that the statistical data support a finding that discrimination based on the race, national origin, and gender is a significant factor that accounts for the underutilization of MBE and WBE subcontractors by private sector prime contractors.

F.

BART has a legal obligation to ensure that funds paid by BART to a bidder/prime contractor are not, in turn, spent by the bidder/prime contractor in a discriminatory manner in its selection of subcontractors. If BART fails to take steps to prevent such discrimination, BART becomes a passive participant in that race and/or gender discrimination.

G.

In a subcontracting market which operated in a non-discriminatory manner, it would be expected that the distribution of subcontracts among subcontractors owned by members of various ethnic groups and women would generally reflect the availability of qualified and available subcontractors in each group to perform the work. Accordingly, if a bidder subcontracts a portion of the work and if a bidder lists subcontracts in such a manner that there is a significant difference between the percentage of subcontracting dollars awarded to MBEs and WBEs and the availability of MBEs and WBEs, then the conclusion is warranted that ethnicity and/or gender discrimination may account for the difference.

H.

Where a bid shows a difference between a bidder’s utilization of MBE and/or WBE subcontractors and the availability of such subcontractors, BART will require information from the bidder from which it can be determined whether the bidder discriminated on the basis of ethnicity and/or gender in subcontracting. If the bidder either fails to cooperate with the investigation or is found to have discriminated in subcontracting, the bidder will be found non-responsive and will not be awarded the contract, even though the bidder is otherwise the lowest bidder.

III. DEFINITIONS

A.

"Bidder/prime contractor" — a private sector business entity, regardless of the ethnicity or gender of the owner, which submits bids or otherwise seeks to obtain contacts with BART.

B.

"Contract" ÷ a contract between BART and a prime contractor which is funded solely with non-federal funds.

C.

"Subcontract" ÷ a contract between a bidder/prime contractor and a first tier subcontractor.

D.

"Minority-owned business enterprise ("MBE")" ÷ a business enterprise that is at least 51% owned and controlled by a minority person(s).

E.

"Women-owned business enterprise ("WBE")" ÷ a business enterprise that is at least 51% owned and controlled by a woman or women.

For each BART contract in an amount of $50,000 or more, which is funded solely by non-federal funds, the BART Office of Civil Rights ("OCR") shall determine, based on the NERA Study or other reliable information, the availability of MBE subcontractors and the availability of WBE subcontractors to perform the work likely to be subcontracted under the contract. MBE availability and WBE availability shall be equal to the percentage of MBEs and the percentage of WBEs in the pool of all subcontractors available to perform the subcontracted work ("availability percentage"). Separate availability percentages shall be determined for MBEs and WBEs.

B.

In each contract covered by this program, the availability percentage for MBEs and the availability percentage for WBEs shall be separately stated as the level of MBE and WBE subcontractor participation which would be expected in a bid package or proposal in the absence of discrimination on the basis of ethnicity or gender.

C.

A bidder is not required to subcontract any portion of the work. If the bidder does not subcontract any of the work, this Nondiscrimination program shall not apply.

D.

If the bidder does subcontract a portion of the work and if the dollar amount of subcontracts listed for MBEs and WBEs by the bidder reflects the availability percentage of MBEs and the availability percentage WBEs, it shall be presumed that the bidder did not discriminate on the basis of ethnicity and/or gender in the selection of subcontractors.

E.

If the bidder does not list subcontracts to MBEs and WBEs in dollar amounts which reflect the MBE and/or the WBE availability percentages, no presumption of non-discrimination exists and the OCR shall undertake an investigation, as provided herein, to determine if the bidder discriminated on the basis of ethnicity and/or gender in the selection of subcontractors.

F.

No bidder shall be found in non-compliance or non-responsive based on a bidder's failure to list subcontracts to MBEs and WBEs in dollar amounts which reflect the availability percentages for MBEs and WBEs. A finding of non-responsiveness may be based only on a finding, made after the bidder is afforded an opportunity for a hearing, that the bidder discriminated on the basis of ethnicity and/or gender in the selection of subcontractors; or on a finding that the bidder did not provide the information or did not otherwise cooperate, as required herein, in the investigation of possible discrimination. At a hearing on the issue of discrimination, the hearing officer may consider, where deemed relevant, a bidder's failure to list MBEs and/or WBEs subcontractors in dollar amounts which reflect applicable availability percentages.

V. INFORMATION REQUIRED FROM BIDDER REGRADING NON-DISCRIMINATION.

A.

If the bidder has listed subcontracts to MBEs and WBEs in dollar amounts it contends are reflective of the respective MBE and WBE availability percentages, the bidder shall provide the following information to BART not later than 4:00 p. m. on the second Friday following the opening of bids:

1. The dollar amount of each subcontract and a statement of the scope of work to be performed under the subcontract.

2. The identification of each subcontract awarded to a MBE or a WBE, including the name, address and telephone number of the MBE or WBE subcontractor.

3. Proof, as required by Appendix 1 hereto, that the subcontractor is a MBE or WBE.

B.

If the bidder has not listed subcontracts for MBEs and/or WBEs in dollar amounts reflective of their respective availability percentages, the bidder shall provide the information required by paragraph A. and the additional information listed below not later than 4:00 p. m. on the second Friday following the opening of bids. If the bidder has listed subcontracts in dollar amounts reflective of MBE, but not WBE availability percentages, or vice versa, the bidder is required to submit the information listed below only as it relates to the availability percentage which was not achieved.

1. Separately for each subcontract, the name, address, telephone number, ethnicity and gender of the owner of each business entity that was listed as a subcontractor.

2. Separately for each subcontract, the name, address, telephone number, ethnicity and gender of the owner of each business entity that submitted a bid, but was not selected as a subcontractor.

3. Separately for each subcontract, the name, address, telephone number, ethnicity and gender of the owner of each business entity that expressed an interest, on the telephone or in writing, in bidding for the subcontract, but did not do so.

4. For each subcontract where a MBE or WBE was not selected, copies of the bids submitted by the non-MBE/WBE, who was selected, and the bids submitted by each MBE and WBE. The bid documents covered by this paragraph shall contain at least the following information: the bid amount and a description of the scope of work. If no written bids were submitted by some or all of the subcontractors who bid the job, the bidder shall provide a written statement containing the amount of each oral bid.

5. Separately for each subcontract where the listed subcontractor is a non-MBE/WBE, a full and complete statement of the reason(s) that the non-MBE/WBE was selected as the subcontractor, and a MBE or WBE was not selected. If the reason is based on relative qualifications, the statement must address the particular qualifications at issue. If the reason is the respective dollar amounts bid, the statement must state the amounts and describe the similarities and/or dissimilarities in the scope of work covered by the bids.

6. A statement describing any efforts the bidder may have made to ensure non-discrimination in subcontracting, including a description of any advertizing and other out-reach efforts.

7. Such other information as may be requested by OCR which is relevant to the issue of possible discrimination by the bidder in subcontracting. This information may include the bidder's record with respect to MBE and WBE subcontractor participation on other general contracts awarded to the bidder in the previous 12 months.

VI. ENFORCEMENT/HEARING PROCEDURES

A.

If a bidder fails to timely provide the information required by paragraphs V. A and/or B. , OCR shall issue a Finding of Non-compliance.

B.

Where a bidder submits information which it contends shows that it awarded subcontracts in dollar amounts which reflect the availability percentages for MBEs and WBEs, OCR shall determine if the bidder is correct. If the bidder is correct, OCR shall issue a Finding of Non-discrimination. If OCR decides that the bidder is incorrect, OCR shall notify the bidder in writing that the bidder must provide the information set forth in paragraph V. B. within five (5) days from the date of the notice.

C.

A bidder, given notice to provide additional information pursuant to paragraph B, shall provide the information in a timely manner, even if the bidder disputes OCR's decision that the bidder did not award subcontracts in dollar amounts which reflect the MBE and WBE availability percentages. If the bidder does not provide all of the required information in a timely manner, OCR shall issue a Finding of Non-compliance.

D.

Where a bidder submits, in a timely manner, the information required by section IV. A. and B. , OCR shall review the information and any other information OCR considers pertinent. In this regard, the bidder shall not unreasonably refuse to provide additional information requested by OCR. Based on this review and investigation, OCR shall make a determination, within fifteen (15) days of the opening of the bids, either that the bidder did not discriminate on the basis of ethnicity and/or gender in its selection of subcontractors, or that a hearing is needed to determine if the bidder discriminated. If OCR decides there was no discrimination, OCR shall issue a Finding of Non-discrimination, which shall be final and not subject to challenge or appeal by any bidder.

E.

If OCR decides that a hearing is needed on the issue of discrimination, OCR shall notify the bidder of this decision within five (5) days of the date the decision is made (i. e. , not later than twenty (20) days after the opening of bids). This written notice shall include the following: the date, time and location of the hearing; the name and address of the hearing officer; and a statement of the reasons OCR has decided that a hearing is necessary.

F.

Unless otherwise agreed in writing by BART and the bidder, the hearing shall begin not later than fourteen (14) days after the date of the notice given pursuant to paragraph E.

G.

The hearing officer shall be selected by OCR.

H.

The only issue to be resolved by the hearing officer is whether the bidder discriminated in its selection of one or more subcontractors. If contested by the bidder, resolution of this issue shall include a determination whether the bidder's selection of subcontractors reflected the availability percentages of MBEs and/or WBEs, and/or whether the availability percentages stated in the contract are accurate.

I.

At the hearing, the bidder and BART may be represented by counsel and may present relevant witnesses and documents. The rules of evidence need not be observed. The hearing officer shall exercise all powers relating to the conduct of the hearing. Regardless of the outcome, the bidder and BART shall bear their own costs and attorneys' fees. BART shall pay the hearing officer's fees.

J.

The hearing officer shall issue his/her written decision within fifteen (15) days of the completion of the hearing.

K.

If the hearing officer finds that the bidder discriminated, BART shall issue a Finding of Non-responsiveness.

VII. PROTEST OF AWARD OF CONTRACT

If applicable, award of a contract is subject to BART's protest procedures. For contracts not subject to BART's protest procedures, all findings, including the findings of the hearing officer, shall be final.

VIII. SEVERABILITY

Each clause, sentence, paragraph, subdivision, section or portion of this Program is separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section or portion, or the invalidity of the application thereof to any person or circumstance shall not affect the validity of the remainder of this Program, or the validity of their application to other persons or circumstances.